Yung Hung Fat v. Kwok Ping Wah Ang Another

Case No.HCA 189/1976

Court

High Court CFI

Date—

Judge—

Case Document

100%Judiciary

HCA000189/1976

1976 No. 189

IN THE SUPREME COURT OF HONG KONG

HIGH COURT

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BETWEEN
	YUNG HUNG FAT	Plaintiff
	and
	KWOK PING WAH	1st Defendant
	NEW LANTAO BUS COMPANY (1973) LIMITED	2nd Defendant

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Coram: Mr. Registrar Cameron in Chambers.

Date of Judgment: 17th August 1977.

Mr. T.L. von Pokorny of the Legal Aid Department for the Plaintiff.

Mr. M.J. Asome, Counsel instructed by Messrs. Johnson, Stokes & Master, Solicitors, for the Defendants.

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DECISION

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1. On 22nd July, 1973, the Plaintiff was a passenger on a public omnibus bearing the registration number AP2031 owned by the 2nd Defendant and driven by the 1st Defendant. At about 1.45 p.m. whilst the said bus was travelling along Keung Shan Road, Lantao Island the 1st Defendant lost control with the result that the said bus collided with a cliff face, then rebounded across Keung Shan Road, plunging down an escarpment for a distance of about 320 feet. The Plaintiff claimed damages against the Defendants in respect of injuries sustained by him.

2. No defence having been served by the Defendants, Interlocutory Judgment was entered on 31st December, 1976 against the Defendants for damages to be assessed.

3. The Plaintiff was admitted to Orthopaedic A Unit, Queen Elizabeth Hospital and on examination was found to have-

(a) Multiple fracture bones:-

	i)	Fractures of left and right clavicles;
	ii)	Crack fracture of left scapular;
	iii)	Fractures of the right 1st, 2nd, 3rd and 4th ribs;
	iv)	Crack fracture of the lower end of the radius with comminuted fractures and posterior dislocation of the lower and of the ulnar bone of the right forearm.

(b) Multiple wounds:-

	i)	Small wounds over the scalp forehead and face;
	ii)	3 wounds 4", 1 ½" and 1" long over the outer aspect of the left elbow;
	iii)	2 wounds 3" x 3" and 4" x 2" over the outer aspect of the right wrist with cut muscles tendons and radial artery;
	iv)	Wound 5" x 3" over inner aspect of right wrist with cut muscles and tendons;
	v)	Wound ½" long on the left big toe.

4. The numerous injuries suffered by the Plaintiff were serious and extensive. Emergency surgery was carried out on the same day as soon as his general condition permitted the giving of a general anaesthetic. This was after vigorous resuscitation therapy - blood and plasma volume expanders given at full rate to combat shock.

5. Sepsis in his right arm introduced at the time of the accident was of a very serious nature. After about 2 months the infection in his forearm was brought under control.

6. On 22nd September 1973 a skin grafting operation to cover the open wounds in his right wrist and hand was carried out.

7. On 31st October 1973 it was decided that his wounds had generally healed sufficiently for him to undergo more intensive rehabilitation therapy and he was transferred to the Margaret Trench Medical Rehabilitation Centre, Kwun Tong. There besides having therapy he was also fitted with various splints and orthosis to support his right wrist and improve the function of his hand.

8. The Plaintiff was discharged from the Margaret Trench Rehabilitation Centre on 9th January 1974. He returned on a number of occasions to a follow-up clinic at Queen Elizabeth Hospital, the last time being the 8th of July 1974. During these visits to the follow-up clinic the main aim was to get the wounds in his right forearm to heal and to improve its function. Further reconstructive surgery in late 1973, early 1974, was considered out of the question because the infection in his forearm had only recently been brought under control and the function of his forearm wrist and hand was still improving with therapy.

9. The most serious injuries sustained by the Plaintiff were to his right wrist and hand. As a result all movements of the wrist were grossly reduced. Further surgery was recommended and in 1976 Dr. Harry Fang carried out two operations. In the first the dislocation of the wrist was reduced and the wrist joint fused. In the second a tendon transplant was carried out to try to achieve some thumb control. Reconstruction of the wrist has corrected the previous deformity but he has very little movement in the thumb and fingers. The movements of separating the fingers and bringing them together is entirely absent. The fusion of the wrist joint has given him benefit although the tendon transplant has not been very successful. The Plaintiff now has a hand which he can use. He is unable, however, to continue in his former work as a jewellery mechanic which requires making fine movements and using delicate instruments. The Plaintiff now works in a Knitting Factory engaged in simple duties such as sweeping and cleaning. He cannot carry any heavy loads.

10. It is considered that his condition is permanent now and any further improvement would be so slight as not to make any substantial difference.

11. Mr. Asome, Counsel for the Defendants, queried the two year delay before reconstructive surgery was carred out on the right wrist of the Plaintiff. The medical witnesses including Dr. Wedderburn who originally considered that reconstructive surgery should have been performed earlier agreed that the delay was reasonable having regard to the serious infection that had occurred, the time taken for tissues to recover and the time required before the full extent of the disability can be guaged.

12. Further surgery in the future was suggested but whilst this might bring about some improvement it was thought unlikely that the Plaintiff would ever be able to return to his profession of jewellery setting.

13. There can be no doubt that the Plaintiff initially suffered considerable pain. This pain gradually diminished but due to the infection in his right arm which took a long time to clear, he suffered discomfort for several months. When the reconstructive surgery was performed on his wrist in 1976 he again had to endure for a short space of time acute pain and discomfort. The Plaintiff only feels pain now if he knocks his wrist against some object or when there are weather changes.

14. As a result of his injuries the Plaintiff is no longer able to play bowls or basketball. He has also stopped playing football as he is worried about falling on his hand.

15. As regards General Damages, I will deal with these under the following heads:-

16. 1) Pain and Suffering and Loss of Amenities

	The Plaintiff was in hospital from July 1973 to January 1974 and again for a short period in 1976. He had to endure considerable pain as a result of the multiple injuries he received though I understand he bore this with fortitude. He can no longer bowl or play basketball. He has also stopped playing football for fear of injuring his hand if he falls. The scarring and deformity of his right hand and wrist have caused him embarrassment but this is passing. He has had to give up his skilled work which it took him 3 years to learn and which he enjoyed. He now has a job of a menial kind.
	The hand injury is a nasty one and although the Plaintiff impressed me as a person who is making the least of his troubles quite clearly he will have to live with the discomforts and disabilities resulting from the accident for many years.
	I assess damages under this head at $50,000.

17. 2) Loss of Future Earnings

	At the time of the accident the Plaintiff, who was 21 years of age, was employed as a gem setter earning approximately $1,000 per month. Had he still been so employed now he would have been earning in the region of $1,500 per month. Because of the injuries to his right hand he has been unable to resume his former employment. Since October 1976 he has been employed by a Knitting Factory performing simple duties such as sweeping and clearing and carrying wool to the workers on the machines. For this work he receives approximately $400 per month. His earnings as a gem setter would have increased with the passage of time. It is unlikely that his present earnings will increase markedly. I propose therefore to adopt a multiplicand of $1,200 and taking into account the age of the Plaintiff, the known facts in this case and the uncertain factors or vicissitudes of life I consider that a multiplier of 15 is appropriate. I therefore assess damages under this head at $1,200 x 12 x 15 i.e. $216,000.
	The total General Damages are therefore $266,000.

18. As regards Special Damages I will deal with those in the order shown in the Statement of Claim:-

a)	Loss of earnings
	From August 1973 to October 1976 at $1,000 per month	$38,000.00
b)	Taxi Fares to attend for follow up trestment	26.00
c)	Taxi expenses incurred by Plaintiff's mother	500.00
d)	Tissot watch	150.00
e)	Seagull Camera	120.00
f)	Cassette tape-recorder	300.00
g)	Damage to Clothing and shoes	85.00
h)	Cash lost in accident	40.00
i)	Tonic food	1,500.00

19. The total Special Damages are therefore $40,721.00.

20. There will be interest at the rate of 8% on the General Damages of $50,000 from the date of the servise of the Writ - 29th January 1976 to to-day and interest at the rate of 4% on the Special Damages of $40,721.00 from 22nd July 1973 also to to-day.

21. The total damages less $10,000 already paid by way of interim payment to be paid to the Director of Legal Aid within 14 days.

22. The Plaintiff is entitled to the costs of this assessment and the action.

23. Dated this 17th day of August, 1977.

	(P.A.G. Cameron)
	Acting Registrar

Representation:

Mr. T.L. von Pokorny of the Legal Aid Department for the Plaintiff.

Mr. M.J. Asome, Counsel instructed by Messrs. Johnson, Stokes & Master, Solicitors, for the Defendants.